Category: Copyright

CASE Act noise gets louder. And sillier.

After the CASE Act passed the House (410-6) on October 22 and moved onto the Senate, the various groups opposed to this copyright small-claim bill turned up the volume on the eerie headline that says Share a Meme.  Lose $30,000!  I and others responded that this allegation is simply not grounded in reality, and to this, Meredith Rose of PublicKnowledge replied with the tweet below …

What’s going on there is a subtle but wicked-important sleight of hand in the service of a multi-layered falsehood.  But that’s why it’s effective.  The lie is complex.  Though, oddly enough, Rose could not have picked a better example to demonstrate how disingenuous the anti-copyright groups are being about the CASE Act.  In fact, the logic is so convoluted, it is reasonable to wonder whether these people are not so much ideologues as just bad attorneys.  Who can say for sure, but here are some facts you are free to verify for yourself …

To begin, the infringement claim to which Rose links in that tweet may lack merit because it was filed by a known copyright troll, which is one reason I assume she selected this example—hoping to imply that trolling will get much worse after passage of the CASE Act.  So, I shall try one more time to describe how the Copyright Claims Board (CCB) will actually look to the copyright troll, whom the bill was specifically designed to discourage.

Whether or not that particular claim has merit, Rose’s citing it only emphasizes the fact that weak or invalid claims can be filed ad infinitum in Article III courts; and it can cost the named defendant quite a lot of money just to argue that the complaint should be dismissed.  This is precisely how an unscrupulous attorney (not just a copyright troll) uses the threat of even invalid litigation to scare settlements out of people.  By contrast, the Copyright Claims Board (CCB) provides no such mechanism of intimidation.  

Because the small-claim tribunal is meant to be used by regular people without the aid of attorneys, the CCB must review every claim for merit before it can even be considered “active” and served upon a respondent. (And yes, claims will be served, not emailed as EFF and others have alleged.)  Further, any party who files as few as two warrantless claims, will not only have those claims rejected, but will also have all other active claims vacated by the CCB on the assumption that the filing party is abusing the system. 

Then, as mentioned many times in other posts, repeat abusers of the CCB face a potential $5,000 fine and/or may be barred from access to the small-claim tribunal for up to one year. And, finally, any respondent can opt out without providing a reason. So, Rose has unwittingly highlighted why the CCB will be a barrier to claims like the one she cited.

Okay, but are memes infringing?

The next noteworthy fact about the case Rose cited is that it does not actually involve a meme.  The accused infringer apparently published a photograph to her website without license, and if that is the only evidence available, there is likely no legal ambiguity there.  Publish anything to a site you control, and you are responsible for any potential infringement claim, whether or not the claim is filed by an unscrupulous attorney. 

This goes to the next layer of nonsense in Rose’s tweet, which is really two falsehoods working in tandem.  The first is that she is conflating conduct (e.g. publishing vs. sharing) with a genre we call “memes;” and the second is the implication that posting a visual work anywhere online that has in some way been altered makes it a “meme,” which automatically makes the image itself—and the posting of it—a fair use.  Spreading this kind of confusion is a disservice to many of the people PublicKnowledge claims to defend.  

A so-called meme based on the use of someone else’s visual work can be a fair use, but it is false to believe that every alteration, like placing some text on a photo, automatically makes it a fair use.  It is of course impossible to say, on a case-by-case basis, which of the gazillion “memes” out there are probable fair uses and/or which among these images even lives in public consciousness long enough to attain the status of a “meme.”  But that ambiguity is central to the aforementioned fallacy of conflating this popular internet genre with the conduct of “sharing” memes.

What the anti-copyright folks really want you to believe is that if you see a meme on Facebook or Twitter and click “Share” or “Retweet,” you will be at greater risk for an infringement claim if the CASE Act passes.  (And then of courseyou will be subject to the maximum penalty of $30,000.)  This scare-tactic relies on the fact that all that sharing we do on social platforms does occur in a somewhat gray area of the law—that although nobody gets sued for re-sharing something that was already on, say, Facebook, this does not mean such a suit could never be filed or that a claimant could never win.  With the law, it’s best never to say never.  But …

Having said that, there are both statutory and caselaw reasons why a claim of infringement for clicking “share” on material that is already on a social platform would be very difficult to support in federal court—and, therefore, even more difficult to allege via the CCB, even if such a claim were ever filed.  The reason it would more difficult at the CCB is because that Board will not have the authority to adjudicate such an untested and delicate question of infringement.  Absent clear statuary or precedential guidance, the Board would have to reject the claim and insist that the complainant file in court. (Note, that this is an opinion and prediction based on observation.)

In addition to the legal complications, there are many practical reasons we do not see these lawsuits right now—why we are not being sued by parties, who can afford it, for sharing those memes—and these reasons have nothing to do with the absence of the CASE Act.  Probably the most common reason is that online sharing is so pervasive that many authors of works have, for better or worse, made their peace with a certain amount of remix and contributory distribution of their material.  There is no practical means of sifting through all that to determine what is and is not fair use, most of it is harmless, and the list goes on …

Small-Claim Copyright Reality 

Behind all that noise, actual independent copyright owners, whom the CASE Act was designed to serve, have neither time, interest, nor resources to explore whether or not your  “share” of a so-called meme made from their image might be an infringement.  It is simply not practical to pursue such a claim, even if it were desirable.  If Disney isn’t suing you for sharing that princess meme, you can be sure that Joanna Photographer can hardly afford to do so, even at the CCB.

The independent copyright owner, like the visual artist who makes between $30,000 and $70,000 a year from her creative work, does not have an unlimited supply of $250 filing fees to throw at copyright enforcement.  Depending on her cost-of-living needs, just four filings with an upfront cost of $1,000 can be a substantial outlay in a given year.  While it is true that one or all of those four claims could yield damage awards well worth the price of the filing, there are barriers to this outcome, not least being that an alleged infringer can opt out of the tribunal.

So, it is only common sense that the independent, small-business copyright owner is going to file claims against willful, direct infringers who clearly should have licensed the work in the first place—and usually for commercial purposes.  These are the claims that will hold up best and have the greatest likelihood of yielding a justifiable damage award—not your silly little meme share on Facebook. 

Troll Art by cosmic_fellow

No, Mike, it’s that you’re just wrong about the CASE Act.

I had to stop myself from responding on Twitter to Masnick’s comments about the CASE Act because I do not like to devolve to pure ad hominem as a form of argument.  Yet there are few things as offensive as outright nonsense disguised to sound like thoughtful consideration.  To wit, I present the following … 

Nobody has “ignored” those considerations; they just don’t make any damn sense.  Moreover, those tweets reflect an astounding degree of cognitive dissonance from a guy who is one of the loudest cheerleaders on the Tech-Utopian Squad.  Mike will dutifully turn sarcasm into a sublime choreography whenever someone thinks to criticize the design, values, policies, functions, or effects of internet companies, but he accuses supporters of the CASE Act of foolishly believing that the copyright small-claim provision will never be used improperly. Really?

For someone who cries “straw man” with some frequency, Mike will have a devil of a time finding a CASE Act advocate who has actually predicted that no bad actor will ever attempt to use the Copyright Claims Board for unmeritorious purposes.  Nobody involved with the provision is that naïve.  Create any system, and somebody somewhere will at least try to use it improperly.  No shit. That’s why the statute anticipates bad-faith use.

Unlike the major internet companies, whose founders intentionally “disrupted” our social, economic, and political world with smug disregard for any of the potential negative consequences, provisions like the CASE Act actually do imagine improper conduct.  It’s in black and white right there in the statute for all to read.  For instance, the $5,000 fine for intentionally filing bad-faith claims with the Copyright Claims Board (CCB) is the antithesis of a blind assumption that everyone will always act in good faith. See how that works?

Nevertheless, Mike believes we’re all mad not to recognize that the small-claim copyright tribunal will inevitably be used to either 1) silence someone; or 2) shake them down for cash.  Let’s consider that shall we?

On the silencing thing, imagine I want to silence Mike Masnick (just sayin’).  He has the right and ability to post hundreds of comments a day on social media, or write posts on Techdirt, and the vast majority of all that speech will not use works that implicate anyone’s copyrights.  So, as a would-be censor, I have to wait in the tall virtual grass for him to make an infringing use of one of my copyrighted works; then pay a fee and file a claim with the CCB; pace the house for several weeks while that process runs its course; and then, if Mike does not opt out of the voluntary tribunal, I will MAYBE get a judgment in my favor, IF my claim of infringement has merit.  That seems like a damned inefficient way to silence someone.

Conversely, I think the data shows that if you really want to silence a person these days, your best bet is to rally the trolls and self-righteous techbros into doxxing and harassing the hell out of them until, in some cases, they are actually forced to flee their homes and jobs for their own safety.  But Mike thinks we should worry about someone weaponizing the Copyright Office.  

In that regard, Mike’s use of the word “shake down” is provocative, but just a tad overstated.  Imagine trying to mug somebody while armed with nothing more than an index card that says, “Please, give me your wallet.”  The target of this improbable assault says, “Nah,” and walks on.  That is roughly how effective the CCB will be as a means to “shake someone down.”  

If anything, the fact that the CCB will be a voluntary dispute resolution alternative has been criticized as a potential weakness of the entire proposal, but it has to be voluntary in order to be constitutional.  Still, as I discussed in this post about a case that, for no good reason, went to the Fourth Circuit Court of Appeals, it is quite possible to anticipate real scenarios in which both claimants and defendants would want to avail themselves of the CCB—especially in conflicts where federal litigation seems likely. 

Mike and the rest of the Tech-Utopian Cheerleading Squad really need put down their pom poms, take a time-out, and ­think about what they’ve done.  Perhaps in a moment of quiet introspection, they will recognize some different systems that, despite the good intentions of those who designed them, have been abused by some pretty bad actors to truly hideous effect.  I don’t want to give it away, though.  Catharsis must come in its own time.   

Reviewing the Basics of the CASE Act

This week, the Copyright Alternative in Small-Claim Enforcement (CASE Act) will very likely pass the House.  Like a quiet tidepool of bipartisanship in otherwise raging waters, congressional support for America’s entrepreneurial creators—photographers, illustrators, designers, musicians, authors, et al—is a matter about which both Republicans and Democrats agree.  And they have not been terribly receptive to the Big-Tech-funded arguments against this legislation for the simple reason that those arguments do not stand up to scrutiny.   

Nevertheless, some negative messaging continues to seep into the blogosphere; and the Senate version of the bill still has to pass.  So, I thought it would be worth providing a basic overview of what CASE IS and what CASE IS NOT.  

CASE IS a proposal to create a small-claim alternative to federal litigation for independent and small-business creators to protect and enforce their copyrights.  

CASE IS NOT a new, fast-tracked, or backdoor proposal.  The need for a small-claim option has been in discussion among copyright experts and independent creators for over a decade, and the legislative process for the current bills began in earnest approximately two years ago.

CASE IS an opportunity for new-media creators (e.g. YouTubers, ETSY merchants, budding digital artists) to remedy infringing uses of their works.  As online-only distribution has grown, so has unlicensed exploitation of these new forms of expression.  For all the new creators who have earned fans and revenue through online platforms, many have also discovered that their work is vulnerable to infringement just like any other rightsholder.  

CASE IS NOT an unconstitutional denial of due process.  The Copyright Claims Board (CCB), which will be convened at the U.S. Copyright Office, is a voluntary alternative dispute resolution option.  An alleged infringer (respondent) may opt out of the small claim tribunal, and the matter will be considered closed by the CCB. Voluntary alternatives to Article III proceedings are not held to be violations of due process rights.  

CASE IS an opportunity for an alleged infringer (respondent) to choose a much more affordable means to defend against a claim of infringement.  Thanks in large part to much of the rhetoric of the internet industry, many users of works are confused about licensing and fair use—and many conflicts simply do not belong in federal court.  So, whether a defendant is right, wrong, or somewhere in between, the Copyright Claims Board will be a more efficient, cost-effective path to a resolution.

CASE IS NOT a golden opportunity for copyright trolls.  Unlike Federal Court, the statute contains explicit anti-troll provisions.  Trolls make money by frightening people into settling (unmeritorious) federal claims for copyright infringement.  Unlike a court, however, the CCB imposes fines for misuse of its claims process, and the Register of Copyrights has the authority to review and restrict repeat users—and even deny them access to the CCB for multiple flimsy claims.  The math simply does not add up for the would-be troll.

CASE IS a means to take effective action against a party that may have wrongly targeted you with a DMCA takedown.  After years of alleging that takedown is chronically abused, it is curious that the anti-copyright groups have opposed CASE, which provides the first practical recourse for the average user to file a claim against an abuser of the DMCA.  

CASE IS NOT a Big Media proposal.  CASE antagonists have tried in a few instances to describe this legislation as the policy agenda of giant copyright holders like movie studios and recording companies.  But it is a matter of common sense to recognize that these multi-billion-dollar industries have little interest in a small claim provision, one way or another.   

CASE IS still a mild pain the butt for claimants.  A claimant needs to file a valid complaint, pay a filing fee, and take time away from his/her real work to do commence enforcement action.  Small-business-type copyright owners, by definition, do not have the resources to file a large volume of claims and, therefore, have very little incentive or ability to file frivolous claims.  They will naturally focus on commercial users and those infringements that directly threaten their livelihoods.   

CASE IS NOT a provision for rubber-stamping infringement claims.  Although the critics make it sound as though the CCB will be a damage-award processing center, that is not how things work in the real world.  By law, the board must review complaints for legal merit under the provisions of the copyright act, and they must also consider the same defenses (e.g. fair use) that any respondent may bring to an Article III court.  

CASE IS a proposed solution for claimants and respondents that alleviates the need to hire legal counsel or to travel to Washington, D.C. or any other venue.  “Appearances” are conducted online via video chat.  Counsel may be hired by either party at their own discretion, but the process is designed for non-attorney users.  

CASE IS NOT too complicated for “average users” to understand, if they should receive a claim against them.  Despite messages designed to frighten every internet user (i.e. everyone) into thinking they will need a law degree to know how to respond to a notice, it will actually be quite simple.  See flow-chart.  Nevertheless, if doubt persists, the recipient of a notice may simply opt-out of the proceeding, and that will be the end of it.  

CASE IS SERIOUSLY NOT a threat to the “normal” use of the internet.  It’s true that we share a lot of material online.  Yet, despite this, you can scroll a typical Twitter or Facebook feed for quite some time before encountering a post that even implicates copyright—let alone a post of substantive value like news or commentary.  Given the trillions of interactions per day, online activity will remain unaffected by the deliberations of the mortal humans adjudicating claims and responses at the Copyright Claims Board.  

CASE IS the first copyright provision in a very long time that restores enforcement power to the proverbial creator next door—those people for whom copyrighted works represent a middle-class living, but who have had to let countless significant infringements go because the cost of enforcement is just too high for their budgets.  Legislatively, it is a rare moment when David (the creators) gets to win over Goliath (the internet and tech industry).  And won’t that be nice for a change.

Flow chart by Graphics Arts Guild.